Citation Nr: 21007208 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-13 866 DATE: February 9, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for chronic lumbosacral strain is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence weighs against finding that the Veteran’s chronic lumbosacral strain manifests in forward flexion of the thoracolumbar spine less than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis 2. The preponderance of the evidence is against finding that the Veteran has a right knee disability, to include right knee pain that results in functional loss. 3. The preponderance of the evidence is against finding that the Veteran has a left knee disability, to include left knee pain that results in functional loss. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for chronic lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5237. 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2006 to November 2007 with additional service in the U.S. Army Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board most recently remanded the case in March 2019 for further development. The requested development has been completed to the extent possible and no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a disability rating in excess of 10 percent for chronic lumbosacral strain The Veteran seeks an increased disability rating for his service-connected chronic lumbosacral strain. Specifically, the Veteran contends that the severity of his disability is not accurately reflected by his currently assigned disability rating. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran’s chronic lumbosacral strain is rated under Diagnostic Code 5237, which pertains to lumbosacral strain. Disabilities of the spine are rated under the General Rating Formula for Diseases or Injuries of the Spine (General Formula) for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based (IVDS) on Incapacitating Episodes (IVDS Rating Formula); whichever method results in the higher evaluation when all disabilities are combined will be used. As relevant in this case, under the General Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Under the IVDS Rating Formula, a 10 percent disability rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent disability rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent disability rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent disability rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. Based on a review of the record, the Board finds that the evidence does not support a disability rating in excess of 10 percent for the Veteran’s service-connected chronic lumbosacral strain. The Veteran was afforded a VA examination in July 2013. Range of motion testing revealed forward flexion to 85 degrees with no objective evidence of painful motion; extension to 25 degrees with no objective evidence of painful motion; right lateral flexion to 25 degrees with no objective evidence of painful motion; left lateral flexion to 25 degrees with no objective evidence of painful motion; right lateral rotation to 25 degrees with no objective evidence of painful motion; and left lateral rotation to 25 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing resulting in forward flexion to 85 degrees; extension to 25 degrees; right lateral flexion to 20 degrees; left lateral flexion to 25 degrees; right lateral rotation to 25 degrees; and left lateral rotation to 30 degrees or greater. The examiner indicated that the Veteran did not have additional limitation in range of motion and functional loss/impairment of the thoracolumbar spine following repetitive use testing. There was no localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing was normal, and no muscle atrophy was noted. Reflex exam and sensory exam were normal. Straight leg testing was negative bilaterally. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy and there were no other neurologic abnormalities. He did not use assistive devices as a normal mode of locomotion. The examiner noted that the Veteran did not have IVDS of the thoracolumbar spine. The Veteran’s thoracolumbar spine condition had no impact on his ability to work. The examiner noted a diagnosis of “strain in the past, normal back today.” The Veteran was afforded a VA examination for his spine in September 2018. The Veteran reported alternating sharp and dull right lumbar pain unrelated to activity. Aggravation of the spine was unrelated to activity. The Veteran denied flare-ups of the thoracolumbar spine. He reported functional loss/impairment of the thoracolumbar spine, noting he was unable to play sports. Range of motion testing revealed forward flexion to 65 degrees; extension to 15 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right lateral rotation to 25 degrees; and left lateral rotation to 30 degrees. Range of motion itself did not contribute to functional loss. Pain was noted on exam but did not result in or cause functional loss. There was no evidence of pain with weightbearing or non-weightbearing. There was evidence of pain on passive range of motion testing. Pain was noted at the right lower paraspinous muscles. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. The examiner was unable to say whether pain, weakness, fatiguability or incoordination significantly limited functional ability with repeated use over a period of time without resorting to speculation. The Veteran did not have guarding of the thoracolumbar spine but did have muscle spasm that did not result in abnormal gait or abnormal spinal contour. The examiner indicated that mild upper dorsal kyphosis and mild left thoracic/right lumbar curve contributed to the disability. Muscle strength testing was normal, and no muscle atrophy was noted. No ankylosis was noted. Reflex exam and sensory exam were normal. Straight leg testing was negative bilaterally. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy and there were no other neurologic abnormalities. He regularly used a soft lumbar brace, with and without the shoulder straps. The examiner noted that the Veteran did not have IVDS of the thoracolumbar spine. The Veteran’s thoracolumbar spine condition had no impact on his ability to work. The examiner noted a diagnosis of lumbosacral strain. The Veteran was afforded a VA examination for his spine in February 2020. The Veteran reported back pain and that he could not stand up straight. He noted his whole lower back hurt most of the time. The Veteran denied flare-ups of the thoracolumbar spine. No functional loss/impairment of the thoracolumbar spine was noted. Range of motion testing revealed forward flexion to 70 degrees; extension to 25 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right lateral rotation to 25 degrees; and left lateral rotation to 30 degrees. The examiner noted that the Veteran reported forward flexion to 60 to 70 degrees, extension to 20 to 25 degrees, right and left lateral flexion to 30 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 30 degrees, with all range of motion the same following three repetitions. Abnormal range of motion itself did not contribute to functional loss. Pain was noted on exam but did not result in or cause functional loss. There was no evidence of pain with weightbearing. The examiner noted that non-weightbearing and passive range of motion testing was not feasible for the lumbar spine. There was no objective evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion after three repetitions. The Veteran was examined immediately after repetitive use over a period of time without significant limitations to functional ability due to pain, weakness, fatiguability or incoordination. The Veteran did not have guarding or muscle spasms of the thoracolumbar spine. His gait was normal. The Veteran was observed sitting, standing, rising from a seated position, transferring to and from and laying down and getting up from the exam table. He was able to do so unassisted, comfortably with ease, and with no objective evidence of pain. Muscle strength testing was normal and no muscle atrophy was noted. No ankylosis was noted. Reflex exam and sensory exam were normal. Straight leg testing was negative bilaterally. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy and there were no other neurologic abnormalities. He occasionally used a brace. The examiner noted that the Veteran did not have IVDS of the thoracolumbar spine. The Veteran’s thoracolumbar spine condition had no impact on his ability to work. Following a review of the record, the Board finds that a disability rating in excess of 10 percent for the Veteran’s chronic lumbosacral strain is not warranted, as there is no evidence demonstrating that the Veteran suffers from forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Specifically, the July 2013 VA examination noted forward flexion of the thoracolumbar spine to 85 degrees with no objective evidence of painful motion, the September 2018 VA examination noted forward flexion of the thoracolumbar spine to 65 degrees, and the February 2020 VA examination noted forward flexion of the thoracolumbar spine to 70 degrees. The February 2020 VA examiner indicated that the Veteran was able to sit, stand, rise from a seated position, transfer to and from laying down and getting up from the exam table unassisted, comfortably with ease, and without objective evidence of pain. Further, no VA examination of record noted combined range of motion of the thoracolumbar spine 120 degrees or less and there was no indication that the Veteran had severe muscle spasm or guarding that resulted in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board notes that while the September 2018 VA examiner noted the presence of mild upper dorsal kyphosis and mild left thoracic/right lumbar curve, the examiner indicated that the Veteran’s muscle spasms did not result in abnormal gait or abnormal spinal contour. The Board has also considered whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. On the July 2013 VA examination, no pain was noted on examination and the Veteran was able to perform repetitive use testing resulting in no additional loss of range of motion or functional loss/impairment. Similarly, on the September 2018 VA examination, the VA examiner noted that pain on examination and range of motion itself did not contribute to functional loss. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The Veteran had denied flare-ups. In the February 2020 VA examination, the examiner indicated that the Veteran’s abnormal range of motion did not contribute to functional loss and pain noted on examination did not result in or cause functional loss. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion after three repetitions. Additionally, the Veteran’s functional ability was not significantly limited by pain, weakness, fatigability or incoordination after repeated use over a period of time. Exhibiting forward flexion of the thoracolumbar spine 60 degrees or less or a combined range of motion of the thoracolumbar spine not greater than 120 degrees is required for a higher rating under the general rating formula for spine disabilities evaluated under Diagnostic Code 5237. The Board notes that the Veteran’s treatment records for the period on appeal do not demonstrate forward flexion of the Veteran’s thoracolumbar spine 60 degrees or less, or a combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board acknowledges that the Veteran himself reported forward flexion of his thoracolumbar spine from 60 to 70 degrees. Forward flexion to 60 degrees would entitle the Veteran to a 20 percent disability rating; however, other than the Veteran’s own statements, the evidence of record does not support such limited flexion. Specifically, the July 2013, September 2018, and February 2020 VA examinations all noted flexion greater than 60 degrees and at worst, the Veteran was noted to have forward flexion to 65 degrees. Range of motion testing on these examinations was conducted with a geometer and therefore are afforded more probative weight than the Veteran’s estimates of his limited range of motion. Further, as noted above, treatment records do not support forward flexion of the thoracolumbar spine to 60 degrees or less. The Board has considered whether the Veteran is entitled to a higher disability rating under the IVDS Rating Formula; however, as there is no indication in the record that the Veteran has IVDS of the spine, the IVDS Rating Formula is not applicable. Finally, as there is no evidence that the Veteran suffers from neurological abnormalities related to his service-connected chronic lumbosacral strain, a separate evaluation is not warranted. Accordingly, the Veteran’s claim for a disability rating in excess of 10 percent for his chronic lumbosacral strain is denied. 2. Entitlement to service connection for a right knee disability 3. Entitlement to service connection for a left knee disability The Veteran seeks to establish service connection for right and left knee disabilities. Specifically, the Veteran asserts that he has “water on [his] knees” and experiences bilateral knee pain due to “running all the time in the military.” A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Following a review of the evidence of record, the Board finds that the evidence does not support the Veteran’s claim of entitlement to service connection for bilateral knee disabilities, as he does not have a diagnosed disability or functional impairment related to his knees. The Veteran was afforded a VA examination for his knees in February 2020. In response to the VA examiner’s inquiries, the Veteran reported he had “water on both knees,” but his left knee was worse. He noted that tests done on his knees revealed water on the knees and he was told to take some pain pills. The Veteran denied a history of injury or trauma and noted he did not see anyone for his knees. He indicated he was last treated for his knees in 2016. The Veteran reported “no current complaints, maybe just a little pain but nothing really.” He denied flare-ups of a knee condition and denied functional loss or impairment of the knees. On examination, range of motion testing of both knees was normal and no pain was noted on examination. The Veteran was able to perform repetitive use testing of both knees without additional functional loss or range of motion. Functional ability was not significantly limited after repetitive use over time. Muscle strength testing was normal, as was joint stability testing. The examiner indicated there were no other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran’s knees. The examiner determined that the Veteran’s ability to perform any type of occupational tasks was not impacted by his bilateral knees. Following review of the record and examination of the Veteran, the examiner determined that the Veteran did not have a current diagnosis related to his bilateral knees. The examiner noted a November 2016 treatment record that diagnosed a right knee contusion following a motor vehicle accident; however, it had resolved, as reflected by a normal right knee x-ray at the time. The accident was unrelated to service. The examiner noted an essentially normal orthopedic bilateral knee exam with no significant objective, PE, or radiographic findings to warrant further diagnosis and no significant subjective complaints. The examiner noted that in addition to the absence of a knee disability, the was no evidence of a knee disability stemming from service or continuity of care related to the knees. The Board acknowledges treatment records that reflect the Veteran’s complaints of knee pain. Specifically, treatment records beginning in 2013 noted chronic bilateral knee pain. An August 2013 treatment record noted that the Veteran presented with bilateral knee pain consistent with patellofemoral syndrome. Small suprapatellar knee effusion was shown on x-rays and the Veteran’s bilateral knee pain was thought to be likely due to early patellofemoral osteoarthritis or patellofemoral syndrome. The Board notes that while the Veteran presented with complaints of knee pain, the presence of associated functional loss was not indicated. Further, while the Veteran’s bilateral knee pain was thought to be the early manifestations of patellofemoral osteoarthritis or patellofemoral syndrome, this was not the case, as the Veteran was never ultimately diagnosed with either condition and 2016 x-rays of the knees were normal. The United States Court of Appeals for the Federal Circuit has held that pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability under 38 U.S.C. § 1110 if it results in functional impairment of earning capacity. Notably, a current disability cannot be shown by subjective pain alone, but there must be some functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Here, the evidence does not show that the Veteran has been diagnosed with a right or left knee disability and the evidence does not support that his subjective pain has resulted in functional impairment of earning capacity. In the absence of a diagnosis or functional loss or impairment, the Veteran does not meet the cornerstone element of service connection, a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, an assessment of the remaining elements of service connection is not necessary, and service connection for bilateral knee disabilities is not warranted. As the preponderance of the evidence is against the Veteran’s claims, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Silverblatt, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.